Kuldeep S/o Kalpnath v Union of India and others

Central Administrative Tribunal

LUCKNOW BENCH

10 May 2013

Bench

D. C. Lakha (Accountant Member), Alok K Singh (Judicial Member)

Original Application No. 322 of 2012

The Judgment was delivered by : D. C. Lakha (Accountant Member)

1. Under challenge in this O.A. is the order dated 24.7.2012 passed by respondent no.3, whereby the services of the applicant were terminated from the post of Tube-well Operator. The applicant has prayed for quashing of this order with all consequential benefits including arrears of pay.

2. The facts of this case, in brief, are that pursuant to the advertisement published in Employment News by which various posts including the post of Tube-well Operator and Electrician have been published. The applicant submitted his application for the post of Tube-well Operator as well as Electrician. After facing interview, he was selected for the post of Tube-well Operator. He was appointed vide order dated 12.11.2010 (Annexure-5) and had been working since then. It is averred in the O.A. that all of a sudden, a memorandum dated 16.1.2012 was issued on behalf of respondent no.3 (disciplinary authority), inter-alia alleging that a compliant has been received indicating irregularities committed during recruitment process and that the applicant had been selected as Tube-well Operator, although he had applied for the post of Electrician (T-1) and that his experience certificate was also found under cloud and that he has been selected by unfair means in connivance with officers of IISR. Therefore, he was asked to show cause as to why his appointment may not be cancelled (Annexure A-1) in the light of the findings of Inquiry Committee. In response to the above, the applicant submitted a letter dated 30.1.2012 denying the charges leveled against him by categorically stating that he had applied for both the posts of Tube-well Operator and Electrician and also took other pleas. It is also alleged that without considering his reply, another Memorandum dated 24.4.2012 was issued directing him to submit additional information, if any, pursuant to earlier memorandum dated 16.1.2012 within 10 days (Annexure-9). The applicant sent a letter dated 9.5.2012 indicating therein that he had already submitted a detailed reply and the entire episode was a result of malice. Thereafter, without considering the replies of the applicant dated 27.1.2012 and 9.5.2012 the impugned order dated 24.7.2012 has been passed terminating the services of the applicant. Hence, this O.A.

3. On notice, the respondents have contested the claim of the applicant by filing a detailed Counter Reply stating that the services of the applicant were terminated under CCS (Temporary Service) Rules, 1965, which provides that the appointment may be terminated without assigning any reason by giving one month s notice by either side under Rule 5 of the CCS (Temporary Service) Rules, 1965 as applicable, mutatis mutandis, to the employees of the Council. During the period of probation, however, the appointing authority may terminate the services of appointee without notice and without the payment of salary in lieu thereof. Therefore, according to the respondents, the termination order was perfectly valid. They have also pleaded that prior to passing of the impugned order, a show cause notice was issued to which he submitted reply denying the charges leveled against him. He was given second opportunity to submit additional information, if any. On referenc the Central Vigilance Commission recommended action against the errant officers/officials of the Council and accordingly common disciplinary proceedings for major penalty against eight erring officers of the respondents has been initiated. But no status report of the said enquiry has been indicated in the Counter Reply.

4. The applicant has filed Rejoinder Reply denying the contentions made in the Counter Reply and reiterating his averments made in the Original Application.

5. We have heard the learned counsel for both sides and have also gone through the pleadings on record.

6. The learned counsel for the applicant has placed reliance on the following case laws:

(i) Union of India & Others Vs. Mahaveer C. Singhvi (2010) 7 SCC 220 2010 Indlaw SC 669 The applicant of this case, an IFS Officer on probation, was discharged. The matter was contested before concerned CAT Bench which dismissed the case in the light of the judgment and order in the case of Dipti Prakash Banerjee (1999) 3 SCC 60 1999 Indlaw SC 410) holding that the discharge order was valid. The Hon ble High Court of Delhi, however, quashed the discharge order finding that the entire object of the exercise was to camouflage the real intention of the employer which was to remove the officer for smoothing about which they had convinced themselves, but did not think it necessary to give him an opportunity to put up his case. The matter went to Hon ble Supreme Court, which also decided in favour of the officer saying that the order of discharge was punitive in character and had been motivated by considerations which are not reflected in the said order. It was also found that admittedly the order in question was issued on account of misconduct of the officer, which was the very basis of the said order. Therefore, it was observed by the Hon ble Supreme Court that having regard to the consistent view taken by it, if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity to defend him, the same would be invalid and liable to be quashed. It was also emphasized that if a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set-aside.

(ii) The Commissioner, Karnataka Housing Board Vs. C. Muddaiah AIR 2007 (10) SC 609 2007 Indlaw SC 882 In this case, reference has been made to para 32 of the judgment. This case law is on the point of no work no pay and its exceptions. The relevant portion of para is as under:

“We are conscious and mindful that even in absence of statutory provisions, normal rule is no work no pay . In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work, but was illegally and unlawfully not allowed to do so. The Court may in the circumstances direct the Authority to grant him all benefits considering as if he had worked. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case).”

7. In the instant case, admittedly, the applicant was a Probationer when his services were terminated by means of impugned order. Learned counsel for the applicant has submitted three main points which entails discussion in the following manner:-

Firstly, it is submitted that the impugned order is stigmatic and punitive. Suffice it is to mention here that in the order in question it has been specifically mentioned that the applicant got selected by adopting unfair means in connivance with the officers of IISR. Therefore, the order in question is indeed stigmatic and punitive. This point is decided accordingly.

Secondly, it is submitted that so-called investigation or inquiry against the applicant was conducted behind his back, which also formed the foundation of the order of discharge. It is proved also from the perusal of the impugned order dated 24.7.2012 which shows that a show cause notice was issued to the applicant asking him to explain as to why his appointment may not be cancelled in the light of findings of Inquiry Committee. After considering his explanation; it was found by the competent authority that his appointment was not in order. Learned counsel for the applicant submits that as has been specifically pleaded in the O.A., though the show cause notice refers to an inquiry, yet the applicant was never associated with it. This specific averment has not been specifically denied or replied in a convincing manner in the relevant para of Counter Reply. Therefore, this point is also decided in favour of the applicant.

The third submission is that the order in question also mentions about issuance of show cause notice and submission of reply by the applicant. It is very surprising to note that after a gap a of few months another Memorandum dated 24.4.2012 was issued asking him to submit his reply, if any, which the applicant may think more relevant to substantiate his case. Finally, thereafter, the discharge order was passed. Having regard to the aforesaid facts, we have no other alternative, but to reach the conclusion that proper and sufficient opportunity was not given to the applicant before passing the impugned order.

8. Therefore, keeping in view the proposition of law laid down in the case of Union of India & Ors. Vs. Mahaveer C. Signhvi 2010 Indlaw SC 669(supra), we have, therefore, no other alternative, but to quash and set-aside the order in question. In respect of prayer for payment of arrears of pay etc. we are conscious of the fact that normal rule is no work no pay , but in appropriate cases, we do take into account the facts in entirety and pass appropriate orders in consonance with law as was held in the aforesaid case of The Commissioner, Karnataka Housing Board Vs. C. Muddaiah2007 Indlaw SC 882 (supra). In the above case, the applicant was willing to work, but was illegally and unlawfully not allowed to do so. Therefore, in these circumstances, it was found that the applicant is entitled to get all benefits considering as if he had worked. This Tribunal has already decided a similar matter in O.A. no. 292 of 2012 on 20.2.2013 in favour of the applicant who was selected and appointed on the post of Driver and worked as such. But suddenly in a similar fashion, his services were terminated by the same respondents vide order of the same date i.e. 24.7.2012. A copy of the above judgment/order has been brought on record by the learned counsel for the applicant. It squarely applies in the present case and similarly situated persons cannot be treated differently.

9. In view of the above, O.A. succeeds and is accordingly. The impugned order dated 24.7.2012 (Annexure-1) is hereby quashed. The official respondents are directed to grant the applicant all the consequential benefits including arrears of pay and other allowances as if he had worked. However, the respondents would be at liberty to take suitable action afresh in the matter in question in accordance with law, if they are so legally advised. On the request made on behalf of the respondents counsel for completion of above exercise three months time, from the date of this order, is provided. No order as to costs.

Application allowed